The importance of disclaimer notices at shopping centres came under the spotlight in recent personal injury cases. In Hanson v Liberty Group Limited and Others  JOL 28202 (GSJ) (Hanson) and the unreported judgment of Niemand v Old Mutual Investment Group Property Investment (Pty) (Ltd) (Niemand), the Courts considered whether the positioning and wording of disclaimer notices were adequate to relieve the defendants of liability for damages sustained by the respective plaintiffs.
In both cases the positioning of the disclaimer notices were found to be inadequate, however, the judgments confirmed that the legal principles relating to disclaimer notices remain unchanged.
In contrast, in Naidoo v Birchwood Hotel  JOL 28826 (GSJ), the court questioned the constitutionality of disclaimer notices.
Hanson v Liberty Group Limited and Others  JOL 28202 (GSJ) (Hanson case)
The plaintiff, Mrs Hanson, visited the Sandton City shopping centre and entered a parking area as a passenger in a motor vehicle. While walking in the parking area she tripped over an elevated expansion joint cover. She instituted action against the administrators of the shopping centre, Liberty Group, for the damages she suffered as a result of her fall.
The court was asked to consider whether the disclaimer notices that were displayed at the entrances to the shopping centre were enforceable and sufficient to exempt Liberty Group from liability for the injuries sustained by Mrs Hanson.
The court relied on the principles set out in Durban's Water Wonderland (Pty) Ltd v Botha & Another 1999 (1) SA 982 (SCA), the leading judgment on disclaimer notices, in terms of which it was held that:
- When a patron like Mrs Hanson did not see or read the disclaimer notice, a defendant like Liberty Group has to advance a case of quasi-mutual assent on the part of the plaintiff; and
- Liberty Group, as the party relying on the disclaimer notice, has the duty to prove that it took reasonably sufficient measures to notify a patron entering the shopping centre of the disclaimer notice; and
- The test applied is subjective and based on the reasonableness of the steps taken by the defendant to bring the terms of the disclaimer notice to the attention of the patron.
In the Hanson case the court found that the disclaimer notice was positioned in such a way that only the driver of a vehicle entering the parking area would be able to see it, and not a passenger. Any person other than the parker or owner of a motor vehicle would not have realised that the disclaimer notice bore any reference or relevance to him or her, and would have been entitled to ignore such a notice.
The court held that the fact that the disclaimer notice was placed on the driver's side of the vehicle indicated that the notice was directed at the parkers or the owners of vehicles; as did the wording. The court concluded that Liberty Group did not take reasonably sufficient steps to give Mrs Hanson notice of the terms of the disclaimer notice, and therefore did not discharge its onus in the matter.
Naidoo v Birchwood Hotel  JOL 28826 (GSJ)
Early one morning Mr Naidoo, the plaintiff, was prevented from exiting the Birchwood Hotel's parking area by a closed gate. He subsequently suffered serious injuries when the gate fell on him.
The court found that the disclaimer signs or notice boards relied upon by Birchwood Hotel were in all probability not yet put up or positioned where the defendant said they were.
Mr Naidoo conceded that, although he did not read them, he was bound by the terms and conditions, or "fine print" that appeared at the back of the hotel registration card that he signed upon arrival. The terms and conditions contained a clause limiting Birchwood Hotel's liability.
In spite of this and the fact that Mr Naidoo had not raised a constitutional defence, the judge noted that prior to the constitutional dispensation, clauses contracting out of liability for negligently causing bodily injury or death were permissible.
But, she also noted that it is unlikely that certain clauses would withstand constitutional scrutiny and that the Constitutional Court has given a clear indication that any contractual term that seeks to deprive a party of judicial redress or approach is prima facie contrary to public policy and inimical to the values enshrined in the Constitution.
The court found in Mr Naidoo's favour and ruled that Birchwood Hotel's defence based on the disclaimer notices and contractual limitation of liability could not succeed because:
- Exemption clauses that exclude liability for bodily harm in hotels and other public places have the effect of denying a claimant judicial or legal redress; and
- A guest in a hotel does not "take his life in his hands" when he exits through a hotel gate. Denying Mr Naidoo an opportunity to approach the court in such instance where his injuries were caused due to the negligent conduct of the Birchwood Hotel would offend notions of justice and fairness; and
- Enforcing this contractual term (the exclusion of liability) would lead to injustice.
This reasoning was not followed in the more recent, unreported Niemand judgment in the North Gauteng High Court. Although no constitutional issues were raised by the plaintiff, the court's application of the legal principles relating to disclaimer notices was very much in line with the judgment in the Hanson case.
These judgments highlight the uncertainty and provide cause for debate about the efficacy of disclaimer notices within South Africa's constitutional dispensation and more recent consumer protection legislation.
Although the Constitutional Court has not been asked to rule on the constitutionality of disclaimer notices, such a challenge is inevitable in future. Regardless of this challenge, it bears mentioning that a defence based on a disclaimer or exclusion of liability is, in any event, not often viewed in a favourable light by the South African judiciary.
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